An Unqualified Defense of Qualified Immunity

• Author: Elliott Averett
• Position: J.D., Georgetown University Law Center, 2022
• Pages: 241-277

An Unqualified Defense of Qualified Immunity

ELLIOTT AVERETT*

“A policeman’s lot is not so unhappy that he must choose between being

charged with dereliction of duty if he does not arrest when he has probable

cause and being mulcted in damages if he does.”

—Chief Justice Earl Warren

1

ABSTRACT

This Note argues that, rather than being eliminated, qualified immunity

should be strengthened in the face of a nationwide increase in violent crime and

collapsing police staffing. This paper first examines efforts to repeal qualified

immunity in Congress as well as recently enacted statutes designed to circum-

vent it in New Mexico, Colorado, and New York City. It then responds to two

common critiques of qualified immunity. Qualified immunity is much weaker

than is commonly believed, as fewer than four percent of civil rights lawsuits

are dismissed on qualified immunity grounds, and textualist critiques about

qualified immunity are inherently selective. The paper then explains why elimi-

nating qualified immunity is unjust: it leaves police officers liable even in cases

where a damages award does nothing to deter misconduct and imposes legal

costs on defendants which frequently exceed any damages. Finally, this paper

addresses the policy rationale for qualified immunity by examining previously

unpublished law enforcement employment data from Colorado, where qualified

immunity was circumvented in June 2020. This evidence suggests that ending

qualified immunity will contribute to rising crime as officers pull back from pro-

active policing or leave the profession. The paper concludes by endorsing a ver-

sion of the good faith test for qualified immunity which could prevent it from

becoming a total nullity.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

II. QUALIFIED IMMUNITY IN CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . 245

* J.D., Georgetown University Law Center, 2022; Basic Law Enforcement Academy Class # 724,

WSCJTC, 2016; B.A., Macalester College, 2015. I would especially like to thank Professor Christy

Lopez for the critical feedback she shared on this Note as part of her Police Accountability Seminar and

Professor Ilan Wurman at Arizona State University for his comments. I also extend my thanks to the

many other people who reviewed drafts, answered questions, or provided inspiration including Daniel

Auderer, Tom Hogan, Ghazal Sharifi, Nolan K. Anderson, and my former colleagues at the Seattle

Police Department’s East Precinct. The Note is entirely my own opinion and does not reflect the views

of any other person, employer, or government agency. © 2023, Elliott Averett.

1. Pierson v. Ray, 386 U.S. 547, 555 (1967).

241

III. ALTERNATIVES TO QUALIFIED IMMUNITY . . . . . . . . . . . . . . . . . . . 247

A. H.R. 7120: The George Floyd Justice In Policing Act of

2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248

B. Colorado S.B. 20-217: The Enhance Law Enforcement

Integrity Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248

C. New Mexico H.B. 4: The New Mexico Civil Rights Act . . . . . 249

D. New York City Local Law No. 48 . . . . . . . . . . . . . . . . . . . . . 250

IV. CRITIQUES OF QUALIFIED IMMUNITY ARE UNPERSUASIVE . . . . . . . 250

A. Textualist Critiques of Qualified Immunity Are Necessarily

Selective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

B. Qualified Immunity Does Not Render Constitutional

Protections Hollow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

V. ELIMINATING QUALIFIED IMMUNITY IS UNJUST . . . . . . . . . . . . . . . 260

A. The Fair Notice Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

B. The Fee-Shifting Problem . . . . . . . . . . . . . . . . . . . . . . . . . . 264

VI. ELIMINATING QUALIFIED IMMUNITY HARMS PUBLIC SAFETY . . . . 266

A. Proactive Policing and Adequate Police Staffing Reduce

Violent Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

B. Ending Qualified Immunity Hurts Proactive Policing . . . . . . 269

C. Ending Qualified Immunity Will Exacerbate the Police

Staffing Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272

D. Eighteen Months Without Qualified Immunity: Evidence

From Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276

I. INTRODUCTION

On the evening of August 26, 2012, police officers in Fayetteville, North

Carolina tried to detain Herman Harris because they suspected he had been

involved in a carjacking.

2

Harris ran when he saw the police, and officers chased

2. See Harris v. Pittman, No. 5:13-CT-3087-BO, 2016 WL 7655798, at *1, *7 (E.D.N.C. Feb. 22,

2016).

242 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:241

after him.

3

Officer Zachary Pittman saw Harris running into an apartment com-

plex and told him to stop, but Harris refused.

4

Pittman chased Harris and warned

him he would be tased if he did not stop running, but Harris continued to flee.

5

Pittman caught up to Harris and grabbed ahold of him, and the two men then

tumbled down a steep embankment into dark woods.

6

As they fell, Harris started

punching Pittman, precipitating a life-or-death struggle as the two men fought in

the dark.

7

Officer Pittman attempted to tase Harris but both men were caught in taser

wire and, when the taser was fired, it affected the officer as well.

8

Harris fought

for control of the taser, then grabbed Officer Pittman’s service firearm.

9

The gun

discharged in the holster, striking Harris in the finger.

10

Harris gained control of

the firearm, pointed the muzzle at Officer Pittman’s head, and pulled the trigger.

11

Miraculously, the weapon misfired.

12

Officer Pittman regained control of his gun

and saw Harris standing over him as he was lying on the ground.

13

Physically ex-

hausted and fearing for his life, Officer Pittman shot Harris three times.

14

Harris

survived the shooting, and later entered a plea of no contest to a charge of assault-

ing a police officer with a firearm.

15

Harris sued Officer Pittman.

16

Harris’s complaint initially claimed Pittman

shot him four times in anger after he’d already been incapacitated.

17

On appeal,

Harris argued only that Officer Pittman’s final shots were excessive and claimed

they were fired after Harris was knocked to the ground by Pittman’s first shot.

18

The facts of officer-involved shootings are often disputed, but the evidence over-

whelmingly supported Office Pittman’s account. Harris admitted trying to kill

Pittman with his own gun and conceded Pittman was legally justified in shooting

3. Harris v. Pittman, 927 F.3d 266, 269 (4th Cir. 2019).

4. Id.

5. Id.

6. Id.; see also Memorandum in Support Regarding Second Motion for Summary Judgment Filed by

Zachery Pittman Affidavit of Orellano at 2, Harris v. Pittman, No. 5:13-ct-03807-BO (E.D.N.C. June 25,

2015), ECF No. 56.

7. Harris, 2016 WL 7655798, at *2.

8. Id. at *4.

9. Id. at *2.

10. Id.

11. Id.

12. Id.

13. Id. at *3.

14. Id.

15. See Memorandum in Support Regarding Second Motion for Summary Judgment Filed by

Zachery Pittman Exhibit Transcript of January 16, 2015 Hearing at 3, Harris v. Pittman, No. 5:13-ct-

03807-BO (E.D.N.C. June 25, 2015), ECF No. 56.

16. See Complaint Against Zachery Pittman filed by Herman Harris at 2, Harris v. Pittman, No. 5:13-

ct-03807-BO, (E.D.N.C. April 18, 2013), ECF No. 1.

17. See Harris v. Pittman, No. 5:13-CT-3087-BO, 2016 WL 7655798, at *1, *6–8 (E.D.N.C. Feb. 22,

2016).

18. Harris v. Pittman, 927 F.3d 266, 272 (4th Cir. 2019).

2023] AN UNQUALIFIED DEFENSE OF QUALIFIED IMMUNITY 243